| La. | Jun 15, 1849
The judgment of the court (Eustis, C. J. dissenting,) was pronounced by
M. D. Bringier died in 1847, leaving a large succession, the-greater part of which consisted of community property. His widow, who is the administratrix, applied for a sale of a part of the moveables, slaves, and lands of the succession, for the purpose of paying the debts of the community, amounting, as it is-alleged, to a sum exceeding $88,000. Two of the heirs opposed the sale as being unnecessary, and alleged that the revenues derived from property of the community, since the opening of the succession, have been sufficient to discharge all the debts, and should be applied to that purpose. To this opposition the surviving widow answered, that one half of the crops, fruits, and revenues yielded by the community property since the death of her husband, belong to her in her individual right, as the surviving partner in community, and the other half, in-virtue of her usufructuary rights under the act of the 25th March, 1844, and cannot be appropriated to the payment of the community debts. The opposition of the heirs was sustained; and, from the judgment dismissing the prayer for a-sale, Mrs. Bringier has appealed.
It is conceded, for the purposes of this suit, that the debts amount to the sum stated in the petition, and that the revenues from the community property, since1 the death of M. D. Bringier, have been sufficient to discharge them. It is also admitted that, iftherevenw.es be not applicable to the payment of the debts, a sale of the property specified in the petition will become necessary.
The question presented is, whether, under the act of 1844, the surviving widow is entitled to the usufruct of the share of the deceased in the community property, from the moment of the husband’s death, and previous to paying the debts ; or whether the debts must be first discharged, and the right exercised upon the residue. The second section of the act provides, “that in all cases where the pre-deceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed, by last will and testament, of his or her share in the community property, the survivor shall hold in usufruct, during his or her natural life; so much of the share of the deceased in said community property as may be inherited -by such issue ; provided, however, that such usufruct shall cease whenever the survivor shall enter into a second marriage.” Acts of 1844, p. 99.
The provisions'of this section were considered in the case of the Succession of Fitzwilliams, lately deided. 3 An. Rep. 489. We there said that: “The usufruct created by the statute was to be governed by the rules established by the Code on the same subject. At the death of the wife, the rights of the parties respectively were fixed by law. The survivor had his election either to sell community property to a sufficient amount to discharge the debts promptly, and to exercise his usufructuary right upon one half of the residue; or, if he preferred to preserve the property unsold-, he could do so, on paying the debts himself, or on assuming them, thereby relieving the heirs from the burthen of interest, which might ultimately absorb their entire inheritance. In the latter event, the tisú
We do not think-that the fact of the surviving wife having taken out letters of administration in any manner affects her usufructuary rights. Those rights depend upon the statute, and upon the provisions of our laws regulating usufructs. By the terms of the statute, the survivor takes the usufruct of so much of the share of the deceased in .the community property as may be inherited by the heirs. That share consists of the one half which belonged to the deceased, subject -to the debts. With that encumbrance it descends to the heirs, from the instant of the ancestor’s death. The right of the survivor to the usufruct of that inheritance attaches, at the same moment that the right of property accrues in .favor of the heirs. Both rights spring out of the same event, and attach to the same property—that is, to half of the community subject to its debts; and, with this burthen, the survivor takes it.
The interpretation contended for by the appellees would suspend the exercise of the usufructuary right until the debts were discharged, and then limit it to the residue. This position is not supported by the terms of the statute, and conflicts with .the rules which govern usufructs. It could only be maintained on the ground that, the existence of debts was incompatible with the exercise of the usufruct; but no such incompatibility exists. On the contrary, our laws provide amply for that contingency, and permit the usufructuary in such cases to retain the whole property, and receive its fruits, on making the necessary advances to discharge the debts, which advances are to be reimbursed without interest, at the termination of the usufruct; or to sell property to an amount sufficient to discharge them, unless the heirs will make the advances, and to exercise the right upon the residue. C. C. arts. 578, 579.
Neither the statutes, nor the enactments of the Code in relation to usufructs, present any impediment to the survivor’s right attaching fully from the momera of the death of one of the parties; nor is the exercise of the right inconsistent with that of the heirs, or of the creditors, to insist on a speedy adjustment of .the debts of the community, -and on a sale of property for that purpose, if it be necessary.
Under our view of the law, Mrs. Bringier, as surviving widow, is entitled to the fruits produced by the community property since the death of her husband, and is only answerable for such interest as may have accrued in the mean time from unnecessary delays which she may have caused in discharging the debts with which it is encumbered.
We think, therefore, that the oppositions of Kenner and wife, and of Trist and wife, should have been overruled, and that the judge should have proceeded to order a sale.
It is therefore ordered that the judgment of the District Court be reversed, and that the opposition of D. F. Kenner, and his wife Nanine Q. Bringier, and of H. B. Tiist, and his wife Elizabeth R. Bringier, be dismissed. It is further ordered that the cause be remanded, for such further orders and proceedings as may be necessary to effect sales of property belonging to the succession in community between the widow and heirs of the late Michel D. Bringier, deceased, to an amount sufficient to pay the debts of said community! reserving .the question